I received a text from a legislator yesterday about a well-intentioned piece of legislation that I support in principle but, as written, could not vote for. It is Exhibit 1 for why the legislative process can churn out such bad laws and why we get so disgusted with our politicians.

The situation is this. A couple of friends emailed me this week excited about House Bill 1412, filed by two legislative friends of mine. My friends who emailed me wanted to make sure I was aware of the bill and know if I supported it. They were excited about grassroots efforts to support the bill. They weren’t so excited after our email exchange.

Just reading the bill, it would appear my support for it would be a no-brainer. The bill purports to defend Natural Marriage as the law in Tennessee and directs state and local officials to disregard the U.S. Supreme Court’s decision in June, Obergefell v. Hodges, that said states had to grant same-sex “marriage” licenses.

After my email exchange, I happened to contact another legislative friend of mine regarding a different bill, and the subject of HB 1412 came up. He said, “It seems to me the momentum for this bill is strong. Anyone against it will be a liberal.”

I told him, “Then I guess I will have to be a liberal.”

Now please understand, I am not against the bill in principle, and I am vehemently opposed to the Supreme Court’s opinion for a number of reasons. But legislators don’t vote on “principles;” they vote on the actual words that compel or prohibit certain actions, and those words, not the principle, are the law.

The Two Key Points

So here’s the first point. When grassroots activists get whipped into a frenzy, some legislators (not all and my friend excluded) will find it hard to vote against them, even if they know that a bill is terribly worded and will not accomplish what the masses want. It’s just too hard to explain your opposition, and you’ll wind up with the “wrong” political label at election time (liberal and conservative politicians all do the same thing).

The second point is that, on the whole, we sometimes don’t understand important constitutional doctrines well enough to know if a bill, as worded, is good or bad; we go on whether it sounds good.

How They Apply to the Bill

For example, the bill, as written, says the Attorney General “shall” defend any state or local official who gets sued for disregarding the Supreme Court’s decision and for recognizing only male-female marriages. That sounds great. The state is going to make sure all these state and local officials are represented when same-sex couples sue them in federal court for violating their rights under Obergefell.

Not so fast, please. The Attorney General is under the judicial branch of government under our state Constitution; thus, the doctrine of separation of powers prevents the legislature from compelling the Attorney General to exercise his discretion to file or defend any particular lawsuit.

In other words, this sentence that people think is going to provide some protection to their local County Clerk, Sheriff, County Mayor, County Trustee, Register of Deeds (and I could go on) 1 when they get sued in state or federal court is meaningless. It is constitutionally unenforceable against the Attorney General.

Moreover, our Attorney General is already publicly on record as saying that the state must comply with Obergefell. So do you really think this Attorney General is going to waste his time defending a local official when he has already said they should obey the Court?

Now this problem in the bill can be addressed another way. I’ve suggested a fix to the sponsors, and I hope they take it. But if not, then this “liberal” will not support the bill. 2

So go ahead and call me a liberal, but now you know why we wind up with laws that don’t work and why politicians vote for them. It’s the fatal combination of an understandable desire to “do something” to fix an admitted problem, our lack of training in the application of constitutional principles to real situations, and the fact that some politicians will find it easier to go with the flow than do the hard work of explaining why they voted the “wrong way.”

NOTES

It is not just County Clerks who will be sued for not issuing a marriage license to a same-sex couple. All these local officials I listed have employees who have employee benefits like group family health insurance and retirement benefits that extend to spouses. So all these officials will have to tell the employee in a same-sex “marriage” “no go” as to these things, and each one who does will be subject to being sued in federal court. That’s a minimum of potentially 475 local officials when all 95 counties are considered.

I have other concerns about the bill that may not be fixable and that I think people must understand before they decide what to do, but that is for another day. But those concerns are not because I’ve become a “liberal”!

David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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